Employment: case on fitness to practise as a barrister
This was a case on fitness to practise, rather than an Equality Act claim as such. It concerns a barrister who had aphasia following a stroke. The Bar Standards Board Review Panel found him fit to practise as a barrister.
In the matter of Horan, 2010
A barrister had a stroke in 1999. It had been doubtful whether he would survive, and if he did, whether he would recover any speech or (possibly) mobility. In the event he recovered both mobility and, by virtue of intense therapy, his speech. He resumed work as a barrister from April 2001.
However, judges in a Court of Appeal case in which he appeared (and won) in 2008 expressed concern about his advocacy in the case. Following a decision of a Medical Panel of the Bar Standards Board, the barrister was not allowed to appear in the High Court, Court of Appeal or Supreme Court. He could appear in lower courts and tribunals but had to give written notice of his medical history to the court and to his client.
Found fit to practise
The barrister successfully appealed to the Bar Standards Board Review Panel, who found him fit to practise as a barrister in all courts. He gave evidence to the Panel that he had appeared without complaint and with success in numerous cases since 2002, and had re-established a regular client base of solicitors. There was medical evidence that his speed of oral delivery and formulation of certain words and phrases was significantly impaired due to his permanent expressive dysphasia (also known as aphasia).
The Review Panel decided that the stroke has left him with a significant impairment of his faculties of speech and working memory. However, the evidence was that he was capable of meeting the oral advocacy standards required of a barrister, provided suitable adjustments and allowances were made to accommodate the disability. He had already, in consultation with his Head of Chambers, imposed some special requirements in relation to his practice, in the interests of giving both his clients and the relevant court or tribunal some advance knowledge of his disability. The Panel commented that courts would expect to be made aware of his disability, so that they understood why his advocacy is as it is, and could make whatever adjustments they consider necessary.
The Review Panel also considered that he had a disability within the meaning of the Equality Act 2010, but this was not part of the main reasoning of the decision. (The Panel assumed for this purpose that the disability meant his discourse required to be listened to over a longer time than a barrister in the same case without his disability, and without undue pressure of questions.)
Reasonable adjustment duty on judges
The Review Panel looked at the issue of reasonable adjustments to be made by a judge in court. The Panel considered there is a non-statutory obligation to make adjustments. (The Panel's view was that the statutory reasonable adjustment duty in Equality Act 2010 does not apply because of an exception for judicial functions).
As regards the non-statutory duty, the Panel said that an act of discrimination affecting the outcome of a case could be made a ground for appeal or review of the decision or of a complaint about judicial conduct. The Panel pointed to the case of R v Isleworth where the High Court stressed that judges (and magistrates) should take into account the advice in the Equal Treatment Bench Book (link to judiciary.gov.uk).
The Panel accepted that in determining a barrister's fitness to practise the relevant panel must take account of adjustments which judges can be expected reasonably to make in compliance with the Equal Treatment Bench Book.
In the matter of Horan  EqLR 473.